David A. Plymyer: Political, Social & Random Commentary

“Swift and certain” discipline for the Baltimore Police Department.

The action taken by Sheriff Leon Lott of Richland County, S.C., in firing Deputy Ben Fields for tossing a female student across a classroom is what the administration of police discipline should look like, and it looks absolutely nothing like what occurs in the Baltimore Police Department (BPD). At his confirmation hearing before the Executive Appointments Committee of the City Council, Baltimore Police Commissioner Kevin Davis stated that the administration of discipline must be “swift and certain,” yet disciplinary action in the BPD moves at a glacial pace.

Consider what will happen in the case of Baltimore police sergeant Robert Messner. Mr. Messner is charged with second degree criminal assault for allegedly spitting on a suspect who was handcuffed and lying on the ground. Common sense suggests that, after gathering the relevant facts, Commissioner Davis should be able to punish Mr. Messner if he concludes that Mr. Messner spat upon the suspect, regardless of what a criminal court does. Common sense, however, has nothing to do with the process of police discipline in Baltimore.

Under the collective bargaining agreement between the Fraternal Order of Police and the city, the criminal case against Mr. Messner must be allowed to take its course before any disciplinary action is initiated against him. Mr. Messner will be suspended from his duties while the criminal case is pending. Because second degree assault is only a misdemeanor, Mr. Messner will continue to be paid during the suspension; an officer may be suspended without pay only if charged with a felony. (Ironically, it is a felony first degree assault for a suspect to spit on a police officer in Maryland, but it is not a first degree assault for a police officer to spit on a suspect.)

A conviction on the criminal charges against Mr. Messner does not necessarily mean that the police commissioner has the right to discipline him, however. Mr. Messner gets two bites at the apple. Even if convicted of misdemeanor assault by a judge or jury, Mr. Messner retains the right under the Law Enforcement Officers’ Bill of Rights to have a departmental “hearing board” decide if he is guilty of conduct that could subject him to disciplinary action by the police commissioner. The hearing board is not legally bound by a guilty verdict in the criminal case and a finding of “not guilty” by the hearing board concludes the matter and forecloses any disciplinary action by the police commissioner. In other words, even if Mr. Messner is found guilty of criminal assault by a judge or jury, Police Commissioner Davis cannot discipline him unless Mr. Messner also is found guilty by a hearing board comprised of Mr. Messner’s fellow officers.

Contrast that with the case of Ben Fields in South Carolina, where Sheriff Lott did within a matter of days that which often requires years in the BPD. Sheriff Lott had his internal affairs section gather the relevant facts as soon as possible and, based on those facts, he determined that Mr. Fields used excessive force in the course of arresting the student and that termination was the appropriate remedy. Although there is an ongoing federal criminal investigation into Mr. Fields’ conduct, Sheriff Lott did not wait for the outcome and based his decision to fire Mr. Fields on the department’s own standards of conduct rather than on the criminal law.

Although Sheriff Lott questioned the use of police officers to enforce school discipline, he stated that once called to the classroom Deputy Fields had the right to use force to remove the student. When Deputy Fields yielded to the impulse to apply a bit of street justice in the classroom, however, he crossed a line drawn by Sheriff Lott. Police work can require physical courage, and it can also require self-control. Sheriff Lott understands that the risks of keeping police officers on the force who lack self-control are too great to tolerate, as harsh as the consequences to Mr. Fields may seem. By his decisive action Sheriff Lott gave the rest of the 700 officers in his department something to think about the next time that the impulse to use excessive force comes over them in the heat of the moment.

But here in Baltimore, officers understand they get paid leave if they step over the line. Cases similar to Mr. Messner’s have taken two to three years or longer to wind themselves through the criminal justice system and the disciplinary process of the BPD. If the administration of discipline indeed must be “swift and certain” in order to be effective, then Commissioner Davis needs to explain what he intends to do to speed up the process in his department.

[Published as an op-ed by The Baltimore Sun on November 12, 2015. I did not post the piece until May 31, 2016; the date of posting listed above was backdated to place the piece on the blog in the order it was written.]